Two U.S. senators and criminal justice experts reflected on the problem of overcriminalization in the United States resulting from the overlapping relationship between criminal and administrative law during an American Bar Association joint meeting last week on Capitol Hill.

“I believe federal overcriminalization, in particular, is detrimental in terms of the financial, social and human cost it imposes on our country,” said Sen. Mike Lee, R-Utah. “I’m far from alone in this regard; in fact, we are seeing increasing bipartisan sensitivity to overcriminalization issues and an increasing openness on the part of members of Congress to re-evaluate federal criminal laws and regulations with an eye toward making some common-sense incremental changes.”

According to some critics, including Lee, many of these offenses are established through extremely broad legal language and minimal “mens rea” (intent) requirements that leave too much authority for determining what constitutes criminal conduct in the hands of regulatory agencies and prosecutors.

“Federal overcriminalization is a serious problem of which something must be done,” Lee said. “We must take account of the lack of sufficient intent requirements in federal laws and regulations and ensure that innocent persons are not held criminally liable for otherwise innocent conduct.”

On the other hand, supporters of the current regulatory approach counter overcriminalization concerns with those of underenforcement.

Sen. Sheldon Whitehouse, D-R.I.

“Let me open with a word of gratitude for regulation,” said Sen. Sheldon Whitehouse, D-R.I. “Medicines are not snake oil mysteries any longer, people are rarely burned or killed in boiler explosions, automobiles have airbags, smoke stacks have pollution controls, stock jobbers have a harder time gulling innocent investors, most insurance companies and policies actually pay when the insured hazard occurs, quacks and barbers can’t be doctors. We take for granted the safety and reliability that a regulated world has built.”

Regulation supporters, such as Whitehouse, argue that broadly worded laws and strong criminal penalties, combined with agency and prosecutorial discretion, are a reasonable and cost-effective way to get the level of deterrence needed to ensure compliance with important federal laws, including consumer protection safeguards and environmental protection.

“Regulation helps channel America’s competitive enterprise into valuable, helpful innovations instead of into new tricks and traps for consumers or new ways of cutting safety corners,” Whitehouse said. “Ask yourselves, would the American pharmaceutical industry be the world powerhouse that it is if patent medicine hucksters were still allowed to operate? Regulation helps set a positive frame for economic progress.”

Whitehouse agreed that regulation can sometimes be out of date or unduly burdensome, but he criticized the political corruption that occurs to advance interest groups’ commercial or special agendas in regards to regulations.

“To maximize the economic benefit of regulation, we have to keep regulations efficient and up to date, but my experience is this: When the deregulatory crowd comes to operationalize this principle, the target is rarely some obsolete technical regulation that properly needs updating,” Whitehouse said. “On the other side of the coin, there is a threat at least as great as burdensome regulation: the threat of regulatory capture, when powerful interests gain improper influence over regulatory agencies.”

Rachel E. Barkow, commissioner on the U.S. Sentencing Commission, offered remarks on the administration of criminal justice, noting that the criminal justice system is a regulatory system in itself, but that it lacks proper oversight mechanisms.

“The administration of criminal justice largely takes place outside courtrooms and is done by agencies,” Barkow said. The criminal justice system is “administrative in every important way, except it is not subject to any of the same legal and structural oversight mechanisms, which is something I think should change.”